Writer Loses Defamation Claim Over Journalist’s Tweet

WASHINGTON (CN) – A federal judge ruled Wednesday that a writer who claimed to be defamed by a tweet allegedly showing her making a white power hand gesture failed to show the Fusion journalist who posted the image did so with actual malice.

On April 28, 2017, Fusion journalist Emma Roller posted a tweet that said “Just two people doing a white power hand gesture in the White House” alongside an image showing the plaintiff writer, Cassandra Fairbanks, standing beside alt-right figure Mike Cernovich and making an “okay” gesture.

Fairbanks sued Roller on June 1, 2017, claiming the tweet disrupted her life, soured her professional opportunities and provoked threats of violence against her.

But the public debate about what the gesture meant at the time Roller sent out the tweet seemed to factor into how the case played out.

Prior to Roller’s tweet, internet trolls at the website 4chan were working on a hoax conspiracy dubbed “Operation O-KKK,” which they instigated to spread the notion that white supremacists had secretly adopted the okay signal.

In a 14-page ruling, U.S. District Judge Trevor McFadden pointed to this in explaining why Fairbanks had failed to state a claim.

“Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks’ tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller,” the opinion says. “Whether because the gesture was actually offensive or because they would think that it was offensive – not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions.”

Fairbanks had argued that Roller knew before she tweeted that the okay hand symbol is not associated with white power, and had failed adequately fact check her assertion or correct it later.

In her complaint, Fairbanks claimed Roller had known Fairbanks once advocated for civil rights for a wide range of people and supported Democratic Sen. Bernie Sanders of Vermont for president, before throwing her support behind Trump.

But the self-proclaimed grassroots journalist also alleged that Roller was motivated to smear her reputation, and viewed Fairbanks as a threat to what she called “gatekeeper journalists,” of which Fairbanks classified Roller.

McFadden, however found these assertions less than clear and convincing.

“None of these arguments comes close to satisfying the First Amendment’s demanding standard for public figures bringing defamation actions,” the ruling says.

“Because free debate inevitably leads to some mistaken statements and punishment of these statements would chill the freedom of speech, reckless disregard requires a ‘high degree of awareness of … probable falsity,'” the opinion says.

McFadden said Fairbanks failed to prove that Roller knew her statement was false, adding that “even ‘an extreme departure from professional standards’ coupled with an illicit motive does not satisfy the actual malice standard.”

Roller had asked McFadden to dismiss the suit as an anti-SLAPP lawsuit designed to chill public speech, but McFadden denied that motion since the D.C. law doesn’t apply in federal court.